Canadian Apocalypse

Seth Rogan, Jay Baruchel, and Michael Cera all figure prominently in the new film This Is The End.  Aside from being Hollywood stars, all three are also Canadians.  The film is mad, bad, and dangerous to know, in the best Byronian sense.  Ostensibly, it is about the apocalypse and the end of days.  However, the film is actually about something much more mundane.  This Is The End is a parable about the cultural dangers that befall Canadians who venture south seeking fame, fortune, and the Beverly Hills lifestyle.  In the film, Baruchel represents resistance to assimilation into the Hollywood Borg, Michael Cera plays a Canadian who has been completely absorbed into the stereotypical lifestyle Baruchel resists, and Rogan is situated between the two extremes, though, much to Baruchel's consternation, he is clearly heading towards full Yankification.   Canadians Jim Carrey, Mike Myers, Ellen Page, Shenae Grimes, Ryan Reynolds, Will Arnett, Dan Ackroyd, Kim Cattrall, Elisha Cuthbert, Corey Haim, Rick Moranis, and Ryan Gosling may understand this better than most.

3andme

In 1997, Princeton geneticist and bioethicist Lee Silver published a brilliant and prescient book entitled Remaking Eden: Cloning and Beyond in a Brave New World.  In it, Silver revealed a genetic fantasia of the future, including the the possibility of children with more than two biological parents.  The future appears to have arrived first in the United Kingdom, where the government, on advice from its Human Fertilisation and Embryology Authority, announced "its decision to proceed with draft regulations which will enable the use of mitochondria replacement techniques to be used for patient treatment."  The techniques would involve the transfer of the nuclear genome of an embryo fertilized by a father and first mother into the cell of a second mother.  The intent of doing so would be to ensure that the resulting child possessed healthy mitochondria from the second mother, along with the healthy nuclear genome of its father and first mother.  Such a child would be a direct genetic descendant of three parents.  Three for one, and one for three!

Parental Rights And Wrongs

The United States Supreme Court decided Adoptive Couple v. Baby Girl on June 25, 2013, an adoption dispute over custody of a very young child.  As summarized by the Court, here are the basic facts of the case:

While Birth Mother was pregnant with Biological Father’s child,  their relationship ended and Biological Father (a member of the Cherokee Nation) agreed to relinquish his parental rights. Birth Mother put Baby Girl up for adoption through a private adoption agency and selected Adoptive Couple, non-Indians living in South Carolina. For the duration of the pregnancy and the first four months after Baby Girl’s birth, Biological Father provided no financial assistance to Birth Mother or Baby Girl. About four months after Baby Girl’s birth, Adoptive Couple served Biological Father with notice of the pending adoption. In the adoption proceedings, Biological Father sought custody and stated that he did not consent to the adoption. Following a trial, which took place when Baby Girl was two years old, the South Carolina Family Court denied Adoptive Couple’s adoption petition and awarded custody to Biological Father. At the age of 27 months, Baby Girl was handed over to Biological Father, whom she had never met. The State Supreme Court affirmed, concluding that the ICWA [Indian Child Welfare Act of 1978] applied because the child custody proceeding related to an Indian child; that Biological Father was a “parent” under the ICWA; that §§1912(d) and (f) barred the termination of his parental rights; and that had his rights been terminated, §1915(a)’s adoption-placement preferences would have applied.

The Court reversed and remanded the case, holding that

Assuming for the sake of argument that Biological Father is a“parent” under the ICWA, neither §1912(f) nor §1912(d) bars the termination of his parental rights.

This decision will be viewed by many as a blow to Native American legal rights.  Others may focus instead on its implications for child welfare law.  Whatever legal perspective one supports, one hopes that the young girl at the heart of the dispute soon ends up in a stable and caring home where she can grow up healthily, and well beyond the public glare of the law.

Preemption Prescription

In its June 24, 2013, decision in Mutual Pharmaceutical Co., Inc. v. Bartlett, the United States Supreme Court elucidated a new aspect of drug regulation in which the federal Food, Drug, and Cosmetic Act ("FCDA") preempts state drug regulation.  As the Court described in its opinion,

New Hampshire law imposes a duty on manufacturers to ensure that the drugs they market are not unreasonably unsafe, and a drug’s safety is evaluated by reference to both its chemical properties and the adequacy of its warnings.

The Court held that

State-law design-defect claims that turn on the adequacy of a drug’s warnings are pre-empted by federal law...

A recent trend has witnessed the FDCA used to justify the preemption of state laws that attempt to regulate drugs.  Although the Court noted that not all state drug regulation is preempted, both states and plaintiffs are left guessing where the borders of preemption lie.

Stanford Deextinction Movie Revue

Video recordings of De-Extinction: Ethics, Law & Politics, the conference on deextinction held at Stanford Law School on May 31, 2013, are now available for viewing on the Stanford Center for Law and the Biosciences website.  Here are all the presentations, organized by topical session:

Welcome and Introduction  (Hank Greely) / Science (Beth Shapiro) 

Environmental Law and Related Issues 

International plus US GMO (Andrew Torrance)
US federal (Alex Camacho)
State fish and wildlife (Chuck Bonham) 

Other Legal Issues 

Animal Welfare (Matthew Liebman)
Liability Issues (Dan Farber)
Property issues (Jake Sherkow) 

Lunch with Stewart Brand

De-Extinction and Conservation Biology 

Conservation Uses of De-Extinction (Stanley A. Temple)
Conservation Biology and Priorities (Kate Jones)
Politics of De-Extinction (Jamie Rappaport Clark) 

Justice, Hubris, and Moral Issues 

Justice (Hilary Bok)
Hubris and Naturalness (Jay Odenbaugh)
Species Ethics (Ronald Sandler)

This conference brought together scholars and practitioners from around the world whose expertise spanned the law, science, ethics, and policy of deextinction.  Hank Greely, one of the founders of the field of biolaw, and his associates at the Stanford Center for Law and the Biosciences deserve tremendous thanks for making such a complete record of De-Extinction: Ethics, Law & Politics available.

Patently Hilarious

The Daily Show covers news like no one else ever has.  On June 19, 2013, guest host John Oliver and correspondent John Hodgman analyzed the issues surrounding the U.S. Supreme Court's AMP v. Myriad decision in "Patenting Human Genes."  This may not be the last word in gene patent law, but it is the funniest.

Rock Chalk Trademark

On June 17, 2013, the Lawrence Journal-World published an article entitled "Trademark protection a constant concern for KU" that explores the efforts the University of Kansas ("KU") exerts to protect its trademarks, including the famous KU Jayhawk.  Reporter Matt Erikson interviewed me about trademark law for the article.  Here is an excerpt:

It’s up to trademark holders to make sure their marks aren’t used improperly, Torrance said. If someone uses your trademark without your permission, it’s up to you to put a stop to it. And if you go too long without doing so — especially if there’s a reasonable chance you know it’s going on — there’s no going back.

Winners of the NCAA men's basketball national championships in 1952, 1988, and 2008, holders of many records (e.g., most winning seasons - 95 - in NCAA history), and perennially ranked as one of, and often the very best of, the top men's NCAA basketball teams, the hoops Jayhawks confer tremendous value to KU's trademarks.  However, both fans and entrepreneurs often express their enthusiasm for the Jayhawks by reproducing Jayhawk logos or phrases without permission.  It is a delicate balancing act for KU to police its trademarks sufficiently to preserve their value without alienating the very people whose support is the very lifeblood of these trademarks.

Academic Post-Op Of Myriad

The leading patent law blog, Patently-O, solicited short reactions to the U.S. Supreme Court's June 13, 2013, AMP v. Myriad decision from patent law professors.  Patently-O published these micro-opinions here.  Here is mine:

Looking at the trend over the past decade, Andrew Torrance (Kansas) writes: "For better or worse, the Supreme Court's AMP v. Myriad decision caps a decade-long trend away from the patentability of the human body, human embryonic stem cells, human physiology, diagnosis of human disease, human thoughts, and, now, human genes."

Ironically, even though the Supreme Court left open the possibility that cDNA sequences might remain patent-eligible, those same sequences will often be patently-o(bvious) in light of existing genomics knowledge and the routine molecular biological techniques used to produce cDNA.

Myriad Ado About Myriad

Never before has the media made more fuss about a patent law court decision. Since the United States Supreme Court issued its opinion in AMP v. Myriad on June 13, 2013, newspapers, radio, television, and the web have been delirious about DNA. For those brave few who care about patent law, this has been wonderful. I have had a lot of fun doing a number of interviews about the Myriad decision over the past day. Two National Public Radio stations - KPR and KCUR - broadcast a story that included parts of an interview with Bryan Thompson, a very talented health reporter. Here is the audio of the story. Here is an excerpt of the transcript:

Professor Andrew Torrance specializes in biotechnology patent law at the University of Kansas. He says the ruling falls hardest on companies that have invested billions of dollars, hoping to profit from patents on human gene fragments like those that help reveal a person’s risk for breast cancer. 

“I think that its practical effect will be to lop many tens of billions of dollars off the investments that a lot of biotech and pharmaceutical companies—and even some universities—made in locating and sequencing and patenting these natural-source genomes," he says.

The Kansas City Star also conducted an interview, and ran an article about the landmark Myriad decision on its frontpage. Here is an excerpt from the June 14, 2013, edition of the newspaper:

"The decision was a little confusing," said Andrew Torrance, a law professor and genetics expert at the University of Kansas. "The court said that isolated, unmodified DNA is patentable, but it hinted at patentability of modified DNA and methods or processes used with synthetic DNA."

Torrance agreed that “pharma and biotech will continue to make money.… The natural-source DNA money stream is coming to an end. It actually peaked in about 2001. Now you have to do more hard work to design genes and get them to do what you want them to do.”

Read more here: http://www.kansascity.com/2013/06/13/4292037/supreme-court-bars-patents-on.html#storylink=cpy

Although the importance of the Myriad decision will take years to reveal itself, the public and the media both appear to sense its importance to innovation, biotechnology, and medicine.  Patent law should bask in its brief time in the limelight, for it will soon return to its usual position well outside the public eye.

Due Diligence On The Myriad Decision

Today (June 13, 2013), Due Diligence, a daily afternoon news program on Voice Of Russia Radio, broadcast a story entitled "Supreme Court decision AMP v. Myriad SCOTUS rules that human DNA cannot be patented."  I had the honor of being interviewed by Due Diligence host Carmen Russell-Sluchansky.  Here is a recording of the broadcast.